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Many real estate investment trusts (REITs) rely on Section 3(c)(5)(C) of the Investment Company Act of 1940 (the Act), which excludes from the definition of "investment company" any person who is primarily engaged in, among other things, "purchasing or otherwise acquiring mortgages and other liens on and interests in real estate." On August 31, 2011, the SEC issued a Concept Release announcing that the SEC and its staff are reviewing interpretive issues and seeking public comment on interpretations related to Section 3(c)(5)(C) and its use by companies engaged in the business of in acquiring mortgages and mortgage-related instruments.
Comments were due on November 7, 2011. It is unclear what the SEC's next steps will be.
